DOGS v. RANCHERS - PART III

DOGS WIN

By Mary MacGregor and Brian Vickers

On July 29, 2013, Judge Cleaveley of the Provincial Court of British Columbia in Kamloops, issued a written decision in the case of R. v. Robinson. The decision should be posted online at http://www.provincialcourt.bc.ca/judgments-decisions although it is not posted at time of writing.The decision is bad news for BC’s livestock industry members.

In this article we discuss the facts of the case as determined by the judge, the judge’s decision, and its implications for livestock owners.

Facts as Determined by Judge Cleaveley

Judge Cleaveley accepted that Bud, the 120 pound Leonberger dog, was "running at large". The dog did not respond when his owner, Mr. Beck, called to him throughout the events described below. Ms. Robinson admitted to killing Bud. This was only the second time she had seen the dog, who had not, as far as she knew, previously chased cattle. There was a history of Mr. Beck’s previous dog chasing cattle.

The judge found that the entire event took place within a minute or a minute and a half. In that time, Bud, at a dead run, chased about 40 head of cattle across a field and bunched them against a fence. The cattle were in a stampede for perhaps 150 feet across the field with Bud behind them, until a fence stopped their progress and the cattle were pressed hard up against the fence with Bud among them.

The judge said that there was no "reliable" evidence that, apart from chasing the cattle, Bud had barked or nipped at the cattle or bit or injured them.

Ms. Robinson, seeing Bud chasing her cattle, grabbed a .22 rifle from a nearby workshop. She then located Bud, who had left the area of the cattle and was sniffing at the scent of dead fish near the lake. At this time, Bud was about 150 to 200 feet away from her cattle.

Ms. Robinson fired two shots at Bud which missed before hitting him in the side with a third shot. Ms. Robinson then put the dog out of its misery with a fourth and final shot.

During this time, according to an unrelated witness, Mr. Beck had discharged his rifle in the general direction of the Robinson’s ranch, and was yelling threats against, at minimum, Mrs. Robinson’s two border collie dogs.

Mrs. Robinson’s evidence was that she did not know what Bud would do next, whether he would return to his attack on the cattle, or pursue herself or her two dogs who were with her.

Decision and Rationale

Judge Cleaveley found Ms. Robinson guilty of wilfully and without lawful excuse killing the dog Bud, contrary to section 445(1)(a) of the Criminal Code.

Judge Cleaveley distinguished between "attacked" and "viciously" in his analysis of Bud’s activities. He found that Bud had merely spooked and chased the cattle, over both a short distance and duration, and that Bud had then been distracted, ,giving up his activities involving the cattle, when he approached the dead fish location near Mrs. Robinson. At this point, Bud "was not a threat to anything or anyone at that point", and Judge Cleaveley found as a fact that "Bud had not attacked or viciously pursued any animals".

Judge Cleaveley also said Ms. Robinson had other options, such as yelling at Bud to scare him off, or calling out to him, or telling Mr. Beck to remove his dog; that she acted prematurely when she killed Bud. He attributed this to long standing animosity between Robinsons and Mr. Beck.

Judge Cleaveley rejected Mrs. Robinson’s lawyer’s submission that the case set any precedent: "This case is like many of the others referred to me in argument, it turns on its own limited facts. It is more a question of common sense than a significant legal ruling."

Problem Aspects of the Decision

With all due respect to the judge’s decision, the problem that it presents to livestock owners is that they must allow their cattle to be chased. If the activity is merely "spooking" or "chasing", the livestock owner will not be justified in shooting the dog. Unless there are clearly teeth showing or blood and hair in evidence, ideally in the context of a recurrence of previous chasing activity, the livestock owner can be successfully prosecuted in criminal court.

This case now stands as authority for the proposition that mere chasing is not "attacking or viciously pursuing" under the Livestock Act. But as every livestock owner knows, chasing is at least as harmful to cattle as a toothful attack.

We note several purely legal issues with the decision:

Proportionality Test Imported to Statutory Defence

In our previous article, we discussed the common law defence, and the concept of a proportionate response.With the common law defence, the livestock owner must try to warn or scare the dog off, or take some action less than killing the dog, before shooting it.

Judge Cleaveley has imported the proportionality defence to the Livestock Act statutory defence, by requiring that the accused’s actions must be reasonable: "the cases focus on the reasonableness of the actions taken by each accused and whether this establishes a justification or a defence". This is an accurate statement of the common law proportionate response consideration, which, in the authors’ view, does not apply to the statutory Livestock Act defence.

If Ms. Robinson’s actions fit the elements of the statutory defence; that Bud was at large and either attacking or viciously pursuing livestock, then whether the judge considers her actions to be reasonable in the circumstances, is irrelevant.

Narrow Interpretation of "Attacking or Viciously Pursuing"

The effect of the decision is that "merely chasing" cattle is neither "attacking" nor "viciously pursuing". Rather, the decision implies that both attacking or viciously pursuing requires chasing plus barking, nipping, biting, or injuring cattle, and does not differentiate between the two activities.

The fact that harm results to the cattle by the simple act of chasing, is not recognized in this decision.

The case suggests that there must be evidence of damage to the livestock before it is acceptable to shoot the dog. This alone makes the protection of the Livestock Act unavailable (especially when combined with the aspects of the decision that relate to timing, below), since the cattle will not be inspected for damage until the event is over.

Immediacy

Judge Cleaveley rejected the defence argument that the incident was ongoing when Mrs. Robinson shot Bud, or that it was one continuous chain of events. In the decision Judge Cleavley indicates that not only had Bud never attacked or viciously pursued any animals, but that Bud was "off to his next adventure".

The common law defence requires the animal to be attacking, in the midst of an attack or for livestock to be in imminent danger from the dog before a rancher may take action. According to Williams v Gardiner (1978, British Columbia), the leading common law defence case in British Columbia, a dog sniffing dead fish 100 meters away, without more, would not be an imminent danger to livestock.

However, the statutory defence, successfully argued in R. v. Prebushewski, allows the statutory defence to succeed even if a period of time has elapsed between the action of chasing and the destruction of the dog.

The Prebushewski case stands for the principle that, at least on a second act of chasing, a clear separation between the act of chasing livestock and the time when the dogs are put down is justifiable.

Implications for Ranchers

The implications of this case for ranchers are clear. If you shoot a dog which is interfering with your cattle and wish to succeed in subsequent criminal proceedings against you:

you need evidence of, at minimum, barking and biting activity by the dog – this can be your own observation, the observation of a believable witness, or physical evidence from the cattle or the chase scene

evidence of the dog’s prior interference with livestock would be useful

you should dispatch the dog before the dog leaves the attack

you should have evidence of some kind of pre-dispatch action to try to stop the dog from continuing its attack – call out to it, fire a "warning shot", call the owner to stop the dog

you must do all this while the attack is in process and in full compliance with all firearms laws and safety requirements.

Recommendations

This decision leaves BC's livestock owners in an untenable position when they need to protect their livestock from dogs chasing or otherwise interfering with livestock.

Whether through appeal or by statutory amendment of BC's Livestock Act, the legal position of the rancher should be changed.

The Alberta legislation language "pursuing, worrying or destroying", has much appeal.

Mary MacGregor is a Kamloops lawyer with Mary MacGregor Law Corporation (www.mmlc.ca). Brian Vickers is a third-year student in Thompson Rivers University Faculty of Law.